Dear Men, Shut Up About ‘Due Process’ Already

From sea to shining sea, on social media pages nationwide, brave men are taking up cudgels on behalf of their brothers-in-sex-and-gender, the ones whose lives are facing ruination because of this country’s #MeToo moment, as accusation after accusation of sexual harassment and assault issue forth from women who’ve previously remained silent. In each case, their defense takes an exceedingly simple form: it is to insist on ‘due process,’ to assert that every ‘accused’ has a ‘presumption to innocence,’ that they are ‘innocent until proven guilty,’ that they fear this business of identifying the men who harass and assault in impunity is all too likely to morph into that most dreaded of social epidemics: the witch hunt. Cease and desist, they say; let us wait till ‘the facts are in,’ till a ‘trial’ has taken place and ‘guilt’ has been conclusively established.

There are several–deliberate, I suspect–confusions at play here. Most prominently, this kind of response confuses the standards for a criminal conviction by the state in a court of law with the usual evidentiary standards that underwrite our usual social judgments of misbehavior. A courtroom furnishes one epistemic context; it addresses the imbalance of power that exists between the state and the accused, and puts the burden on the state to prove its point. This standard of proof is relaxed in civil cases, which only require a ‘preponderance of the evidence’ and do not require guilt to be established ‘beyond a reasonable doubt.’ Our day-to-day social encounters furnish yet other epistemic contexts; within them, we are, on a daily basis, subjected to ‘evidence’ of varying  levels of reliability, submitted by sources whom we trust to varying degrees; we act on the basis of these sorts of claims, assessing them using our socially acquired and developed skills of evidence evaluation; we often act on the basis of incomplete or only partially verified evidentiary claims; indeed, we have to, for stasis and inaction are not options more often than not. That is, we do not sit around, waiting for the standards of a criminal court to be satisfied before we act; social ends, desirable ones, have to be met.

Critical legal studies scholars have, for a long time now, identified one dishonorable ideological function that the law and its institutions–among which is legal language–play in our society: the establishment of a kind of ‘rationality’–the legal kind, which ostensibly aspires to the value-free, fact-laden-and-dependent kind of reasoning followed in the sciences–which can then be used to discredit other kinds of reasoning. The invocation of deployment of criminal law’s standards of evidence and its methodology for determining ‘guilt’ in social contexts outside of courtrooms is a good example of this kind of ideological maneuver. This invocation is particularly problematic when it is realized that courtroom deliberations themselves are anything but value-and-bias-free; determinations of guilt in courtrooms are as socially and politically riven as those that take place elsewhere; it is just that legal decisions lay claim to a presumption of having cleansed themselves of prejudice thanks to their supposed circumscription by ‘legal method.’

This particular technique of obfuscation has a long and dishonorable history–and it looks likely to continue for the established future. After all, maintaining this confusion is necessary for the maintenance of established power relations and for the continuance of bad behavior by serial offenders.

That Sneaky Cur, The Defense Lawyer

A quick quiz: When you think of phrases like ‘all lawyers are liars,’ ‘the law is an ass,’ ‘first thing we do, let’s kill all the lawyers,’ what vision of miscarriages of justice come to mind? Do you think of the innocent being deemed guilty, or do you think of the guilty getting off scot-free? Let me venture a guess: it’s the latter. Moreover, I would also surmise that the kind of lawyer you have in mind when these images of law present themselves is a very particular one: the defense lawyer. A sneaky, unethical, slimy, conniving, opportunist who represents the reprehensible, who puts his morals on hold and sallies forth to defend the indefensible, looking for loopholes in the law through which his client may wriggle, away from the grasp of the law and the virtuous society which seeks to prosecute him. Isn’t that really the worst kind of lawyer? The defense lawyers? You know, the ones who defend the ‘guilty’?

We have plenty of cultural representations to thank for this image of the defense lawyer. (I was reminded of this all over again as I sat through the second season of Broadchurch; in the last episode, the assistant prosecutor makes sure to tell the eager assistant defense attorney that she is a ‘horrible person;’ the series makers have done their best till then to drive us to the same conclusion; she is, after all, shown to be the master of the dirty trick, anything to get her client, a murdering pedophile, off the hook.) Remember the phrase ‘all lawyered up’ made so popular by one police and homicide procedural after another? Apparently, policemen and judges and detectives just want to do their work, but those pesky defense attorneys get in the way.

These are strange representations to deal with in a country engaged in the process of a gigantic human rights violation called ‘mass incarceration.’ Here, prosecutors engage all too often in gross misconduct, piling up charge after charge on their initial indictments, which they will then drop down to force accused into plea deals for lesser sentences, thus often forcing the innocent to choose jail time. They strike us as even stranger when we consider that the hardest working species of lawyer is the public defense attorney: overworked and underpaid, staggering under a caseload that would bring the most ardent workaholic to his knees.

This state of affairs is entirely unsurprising. We are a very self-righteous species, blessed with a sense of our own rectitude and of the guilt of others; our insecurity in the former dimension makes us lash out in the latter; our theories of punishment are infected with petty, vicious, vindictiveness. We suspect legal protections for the accused because we do not imagine ourselves ever needing them; they are there merely as smokescreens and obfuscations of the legal process. So those who employ them must be suspect too; they must be sophists and liars, manipulators employing deceitful sleight of hand maneuvers to pull the wool over our collective eyes.

Perhaps we should be more tolerant of the defense lawyer; perhaps we should not rush to judge them too quickly. Prudence bids us do so; we might need one someday.

The Implausible Immigrants Of ‘The Night Of’

In HBO’s The Night Of a young Pakistani-American, Nasir Khan, has a bad night out: he ‘borrows’ his father’s cab for a joyride, picks up a mysterious and beautiful stranger, parties with her, and wakes up in her apartment to find her dead, and himself accused of murder. Things look bad, very bad. And so we’re off, probing into the subterranean nooks and crannies of the criminal justice system. Meanwhile, on the ‘outside,’ his stunned and bemused parents, convinced of his innocence–remain stunned and bemused, fumbling about, accepting help as and when it is given to them by strangers. This depiction of their plight and their reaction to it reveal this show’s understanding of immigrant life to be a very superficial one.

Immigrants don’t sit around, waiting for help to fall into their laps. The fact that they left their homelands to seek a better life is a prima facie indication they don’t do so. Here is what a pair of real-life Mr. and Mrs. Khans, living in the US for long enough for their son to have been born and brought up here, would have done had their son been picked up by the police and thrown behind bars: they would have started working the phones, calling every single one of their friends and family members who could help. They would have put the word out; they would have hustled, desperately and frantically, in a  manner quite familiar to them. The would have worked every ‘angle’ available to them. Perhaps a friend knows a friend who knows a criminal lawyer (“Let me call Hanif, his friend Syed used to work with a lawyer once”); perhaps someone knows a local Congressman who could help (“Do you think we should call Rizwan to see if he can put in a good word for us?”).  The Khans are shown living in Queens; their precise neighborhood is never named, but one can guess the show’s makers had Jackson Heights–where a large Indian, Pakistani, and Bangladeshi community resides–in mind. If the Khans had been living there for any length of time, they would have built up, as all immigrants do, a rich network of connections who would have enabled and facilitated many aspects of their life in New York City. Nasir’s father, Mr. Khan, is shown as being successful enough to have a part-share in a cab; he did not get to that point without: a) displaying considerable drive and b) cultivating partnerships and relationships.

Leaving an old life in one’s home and starting a new one elsewhere take energy and initiative, the kind conspicuously absent in The Night Of’s depiction of an immigrant family’s responses to a personal catastrophe. The networks of ‘connections’ and ‘contacts’ immigrants rely on to replace the comfortable social structures of the past are what make their lives in this new land possible; an immigrant who did not instinctively rely on such forms of aid, and who did not display sufficient initiative to draw on them, would not last too long in this unforgiving land. Mr. and Mrs. Khan do a good job of looking like shocked parents; they don’t do such a good job of looking like immigrant parents who have brought up their child away from ‘home. ‘

Hating On The Phrase ‘All Lawyered Up’

You’ve heard it in police procedurals on the television and the big screen. I know I heard it in The Killing and The Wire. A couple of weary beat cops or detectives, battling crime on the streets, fighting the noble War on Drugs perhaps, keeping us law-abiding citizens safe from the depredations of the big, bad, mostly black criminals out there, grimly acknowledge that they cannot make a move against a suspect because he is ‘all lawyered up.’ (The Wire threw in the offensive stereotype of the sleazy Jewish lawyer defending criminals for good measure; as noted elsewhere briefly, that show overreaches at some points.)  He has legal counsel; he won’t talk; he won’t confess; he cannot be interrogated in the way the cops would like; he has withdrawn into a safe space, protected by a mere ‘technicality’ called ‘due process.’ A collective groan goes up from the audience: goddamn criminals and their lawyers, artful dodgers both, have slipped loose once again of the restraining strong arm of the law. If only those weasel lawyers would get out of the way, the police, prosecutors, and judges and juries could get on with the business of sending the most decidedly guilty to jail. The ends justify the means, right?

In a nation suffering from a mass incarceration crisis, which arrests twelve million of its citizens every year (defended by fifteen thousand public defenders), where police-induced false and coerced confessions are among the leading cases of wrongful convictions (including homicide cases), whose Supreme Court has systematically eviscerated the rights of criminal defendants in every domain of criminal procedure ranging from initial arrest to admissible evidence to jury instructions, where plea bargains result in innocents serving jail time for crimes they did not commit, the phrase ‘all lawyered up’ must rank as one of its most bizarre cultural productions.

It contributes to, and is part of, a cultural and political state of affairs whereby most Americans imagine that the law is too easy on crime and criminals; that the rich, powerful crook capable of hiring a $500-an-hour defense lawyer is the average arrestee; that the law’s protection of those detained or arrested by the police is a cumbersome obstacle to be bypassed or evaded. It contributes to the buildup of a groundswell of anger and frustration that all too often results in an urge to ‘throw the book’ at defendants, to harsher sentencing regimes, to a vindictive and retributive philosophy of punishment. Many folks possessed by such attitudes do not just serve on juries; they also serve as judges.

The American mass incarceration crisis has many components to it; it is enabled by many systems and agents. Among them is a cultural industry that specializes in keeping us scared and angry and hostile to the rights of our fellow citizens; the police are the thin blue line, restrained and helpless, unable to protect us because the forces of obfuscation and bureaucracy, law and lawyers, waving antiquated scrolls marked ‘Constitution’ and ‘Criminal Procedure’ will only hinder and obstruct the work of angels.

What a crock.